Tag: Law

The Future of Law

Whiskey Tango Foxtrot:

Columbia Law School is allowing students to postpone their final exams this month if they feel unnerved by the recent grand jury decisions not to indict police officers in the deaths of unarmed black men.

The policy was announced by the school’s interim dean, Robert E. Scott, in an email on Saturday to the school community. A small number of students have received postponements, a Columbia spokeswoman, Elizabeth Schmalz, said on Monday, though she declined to say how many.

In his email, Mr. Scott wrote that following existing policies for “trauma during exam period,” students who felt their performance could suffer because of the decisions in the Ferguson, Mo., and Staten Island cases could request a delay.

“The grand juries’ determinations to return nonindictments in the Michael Brown and Eric Garner cases have shaken the faith of some in the integrity of the grand jury system and in the law more generally,” he wrote. “For some law students, particularly, though not only, students of color, this chain of events is all the more profound as it threatens to undermine a sense that the law is a fundamental pillar of society designed to protect fairness, due process and equality.”

Other schools have announced or been asked to consider similar policies.

You know, a lot of people were upset about the Ferguson verdict and especially the Garner verdict. But you know what? We learn to go on with our lives despite trauma that does not personally involve us. And if this is going to “shake your faith” in the legal system so badly that you can’t take an exam, what the hell are you going to do when you’re the attorney on the business end of a bad jury decision? Putting aside the specifics of these two cases, no one has ever claimed that our justice system is perfect. If you’re exposed to it for any length of time, you’re going to have to deal with crushing disappointment. In fact, there is no profession in the world where one does not have to deal, at some point, with disappointment. There is no person in the world who will go through life with dealing without pain a lot more intense than a grand jury verdict involving strangers.

What’s next? Time off for final exams if their team loses the Super Bowl? I’ve had it with college and graduate school students who are made of eggshells. Everyone’s “offended”. Everyone has “triggers”. Everyone is obsessed with “microagressions“. We have thousands of students around this country who can’t get through a day without a fainting couch. Amy Alkon:

This behavior is coming from students who have grown up in what, at any other time in history, would be considered luxurious comfort. And that is true of almost most people who grow up in America, even those who do not grow up in middle-class families.

I believe that so much comfort — and the notion that even the slightest discomfort is a form of injustice — has played a role in both many people’s unwillingness to stand up for our civil liberties and in the witch hunts going on on campus. Oh, the horror that a professor would correct your grammar!

And yes, there’s obviously all sorts of multi-culti victim studies-think behind this, too — of course — but I think the perceived “right” to comfort at all times is something we’ve overlooked.

But you know what? I strongly suspect this is bullshit. I would bet the euros left in my wallet that this is mainly law students trying to weasel out a few more study days. And I suspect the school knows this, if their faculty aren’t complete morons (always a possibility). I suspect they’ve allowed this because they want to “make a statement” about the verdicts.

The Torture Report

The Senate has release their report on the CIA torture program:

The CIA’s harsh interrogations of terrorist detainees during the Bush era didn’t work, were more brutal than previously revealed and delivered no “ticking time bomb” information that prevented an attack, according to an explosive Senate report released Tuesday.

The majority report issued by the Senate Intelligence Committee is a damning condemnation of the tactics — branded by critics as torture — the George W. Bush administration deployed in the fear-laden days after the September 11, 2001 terrorist attacks. The techniques, according to the report, were “deeply flawed” and often resulted in “fabricated” information.

The CIA immediately hit back at the report, saying in a statement that the program was “effective” and substantially helped its understanding of Al Qaeda’s tactical operations and goals.

I am disinclined to believe the CIA on this, given their desperate attempts to cover it up, which included the destruction of video tapes of interrogations and attempts to spy on members of Congress. The report was trimmed down from more than 6000 pages to the current 480 and large parts were redacted at the behest of the CIA. And it’s still pretty damning. The initial reporting is that it included weeks of waterboarding and sleep deprivation, usually used almost immediately after capture.

I’ll post more as commentary comes in and I get a chance to read some of the report. The report itself is here.

Update: NYT:

Detainees were deprived of sleep for as long as a week, and were sometimes told that they would be killed while in American custody. With the approval of the C.I.A.’s medical staff, some C.I.A. prisoners were subjected to medically unnecessary “rectal feeding” or “rectal hydration” — a technique that the C.I.A.’s chief of interrogations described as a way to exert “total control over the detainee.” C.I.A. medical staff members described the waterboarding of Khalid Shaikh Mohammed, the chief planner of the Sept. 11 attacks, as a “series of near drownings.”

The report also suggests that more prisoners were subjected to waterboarding than the three the C.I.A. has acknowledged in the past. The committee obtained a photograph of a waterboard surrounded by buckets of water at the prison in Afghanistan commonly known as the Salt Pit — a facility where the C.I.A. had claimed that waterboarding was never used. One clandestine officer described the prison as a “dungeon,” and another said that some prisoners there “literally looked like a dog that had been kenneled.”

The report also addresses the CIA’s list of terror attacks they claim were prevented by torture, noting that in most cases the torture information was either inaccurate or confirmed information they already had.

You can read the response of ex-CIA directors here.

Update: A look at claims made by the CIA that torture worked. None of them stand up to scrutiny … according to the CIA’s own documents.

The Amnesty that Dare Not Speak Its Name

So Obama gave his big speech last night about immigration. The big change is he will extend temporary legal status to about 4-5 million illegal immigrants. To qualify, they will have to have been here five years, have US citizen relatives and have not broken the law (I mean, other than the ones they broke getting here). There is no path to legal status, a green card or citizenship (at least, not yet). And, of course, the next President could undo it.

I’ve made it clear where I stand on this: we need to make it easier for people to legally come here and work; we need to make it harder for people to come here illegally; people who came here illegally should not be moved to the front of the line when it comes to getting legal status. The underlying problem is that we have a broken immigration system. We have a system where coming to America to work involves a long, drawn-out, frustrating and expensive process and becomes a big driver of illegal immigration. Until we fix that, illegal immigration is still going to be a problem. I’m also sympathetic to the arguments that our immigration policy shouldn’t break up families or send people back to countries they’ve never lived in.

But …

All that having been said, I still don’t like what the President is doing.

First, he is doing this by executive fiat without any consultation with Congress. Now I absolutely agree that Congress has dropped the ball on this. Over and over again, they have refused to do anything about our immigration mess. But this does not make the President’s unilateral action wise or even constitutional. Our Constitution does not have a “Congress are being assholes” clause. In fact, the Justice Department informed Obama, they day before his speech, that his actions were of dubious legality. When your own justice department tells you that, that translates into plain english as “this is fucking illegal.”

Even if you assume that he has the authority to act here, that still doesn’t make it right. He’s not even giving Congress a chance to do something about immigration. Obama told the last Congress to stall on immigration until after the election. He has not given the lame duck Congress a chance to act nor has he given the new Congress a chance to act. If he were doing this six months into a Republican Congress, he might have a point. But then again, the new Congress is unlikely to give him the kind of immigration reform he wants. Thus, the petulant act.

Second, Obama can dress this up all he wants. He can claim this isn’t an amnesty. But as noted Matt Welch — a supporter of massively expanded immigration — this is amnesty. When you say you will not deport people who break the law, that’s pretty much the definition of amnesty.

My fellow supporters of vastly increased legal immigration to this country do not, I believe, further their cause by retreating into soft-focus euphemism (DREAMers!) or sidestepping uncomfortable language just because it has proven politically effective for people on the other side of the issue.

If you recognized the existence of more than 10 million unpermitted residents in this country as the product more of prohibition than of criminality, and acted upon that insight foremostly by expanding and deregulating legal immigration, then I predict the word “amnesty” would start to lose some of its negative potency. People really resent line-jumpers when the queue stretches back as far as the eye can see; speed up that process and our national debate would look a lot more reasoned and thoughtful.

Exactly. I lived in Texas for four years. We had a lot of people who did work for us that I’m sure were of questionable legal status. They worked hard, they took care of their families, they obeyed any laws unrelated to immigration. But they were still law-breakers. I want to see them get a chance to come to this country legally. I do not want to see them get that chance ahead of people who have obeyed the law.

The laws against illegal immigration aren’t like a law against free speech or for discrimination. Coming to this country illegally is not an act of civil disobedience. This is a serious business.

Finally, the President’s verbal gymnastics did not persuade me; they annoyed me. He argued very well that we need immigration reform. He didn’t persuade me at all that this was what we needed McArdle:

As an act of rare semantic derring-do, this was a towering achievement. As a political speech, I don’t think it was very effective. It puts one in mind of the debate in “The Hitchhiker’s Guide to the Galaxy,” which ends when one side manages to prove that black is white — and gets themselves killed at the next pedestrian crosswalk.

To be honest, it’s not clear to me that the president was trying to be persuasive. He seemed, rather, to be triple-dog-daring Republicans to jump off the bridge with him, and if history is any guide, they will probably oblige. But there’s a real risk that Democrats will come to regret having the president jump first.

(McArdle also points out the significance that his speech was only broadcast on Univision. And that is a key point. A lot of this speech wasn’t about advancing policy; it was about trawling for latino votes. Expect the ability of the next President to undo Obama’s amnesty to become a big issues in 2016.)

So what should Republicans do? The most common tactic I hear is recession — using the budget process to defund the President’s actions. I would support that but I think it’s small. A better idea would be for the Republicans to pass their own version of immigration reform and dare the President to veto it. Force his hand. Force him to choose his executive fiat over the legal and constitutional moves of the Congress. Show that Republicans are not a bunch of anti-immigrants racists; they just want the law to be obeyed.

The Forest Service Charges for Freedom

What on Earth?

The U.S. Forest Service has tightened restrictions on media coverage in vast swaths of the country’s wild lands, requiring reporters to pay for a permit and get permission before shooting a photo or video in federally designated wilderness areas.

Under rules being finalized in November, a reporter who met a biologist, wildlife advocate or whistleblower alleging neglect in any of the nation’s 100 million acres of wilderness would first need special approval to shoot photos or videos even on an iPhone.

Permits cost up to $1,500, says Forest Service spokesman Larry Chambers, and reporters who don’t get a permit could face fines up to $1,000.

First Amendment advocates say the rules ignore press freedoms and are so vague they’d allow the Forest Service to grant permits only to favored reporters shooting videos for positive stories.

Well, duh. The Forestry Service is claiming they are protecting the wilderness from being exploited for commercial gain, as dictated in the Wilderness Act of 1964. I don’t have the exact language of the law in front of me, but that reeks of bullshit. The Act has been in place for fifty years and we haven’t needed this. It’s one thing to enact rules to prevent a camera crew from traipsing through and destroying protected areas. But requiring a permit reeks of censorship. Mataconis:

What if, for example, a national or local television news reporter were covering a story based on allegations of malfeasance by Forest Service officials that made taking video on Forest Service land relevant? How, in that context, is a reporter supposed to apply for a permit to begin with? From the descriptions of the process, it appears that media outlets are required to provide some kind of justification for why they need the video in question, and in this case that would require the reporter to either lie to a government official or potentially reveal the story they are working on to people who are the focus of that investigation. In a case like that, if a permit is denied, the strong implication would be that the agency had something to cover up because of the manner in which it was restricting press access.

Gee. I have no idea why a government agency might want to vet what’s being reported out of their bailiwick.

Don’t think is happening in a vacuum. If the Forest Service can restrict media access to public lands, other agencies will start restricting media access as well. This is a trial balloon by the Feds. And it needs to be popped.

McCollum and Brown Freed

Chalk another exoneration up to DNA evidence:

Thirty years after their convictions in the rape and murder of an 11-year-old girl in rural North Carolina, based on confessions that they quickly repudiated and said were coerced, two mentally disabled half brothers were declared innocent and ordered released Tuesday by a judge here.

The case against the men, always weak, fell apart after DNA evidence implicated another man whose possible involvement had been somehow overlooked by the authorities even though he lived only a block from where the victim’s body was found, and he had admitted to committing a similar rape and murder around the same time.

The startling shift in fortunes for the men, Henry Lee McCollum, 50, who has spent three decades on death row, and Leon Brown, 46, who was serving a life sentence, provided one of the most dramatic examples yet of the potential harm from false, coerced confessions and of the power of DNA tests to exonerate the innocent.

It’s cases like this that have moved me to a neutral position on the death penalty and now have me leaning against it. Had we gotten the speedy execution that many wanted, not only would we have executed two innocent men, the real murderer might never have been identified.

In the end, the case against the death penalty is not a liberal one. I’m not terribly moved by appeals to mercy for those who have none. Nor do I think executing men who rape and murder little girls makes us “no better than them”; there is a colossal moral difference between raping and murdering a child and executing that murderer. No, the case against the death penalty is a conservative one: that the government has demonstrated, a couple of hundred times now*, that it can not be trusted with the power to execute people.

For death penalty supporters, the horrifying facts of the girl’s rape and murder only emphasized the justice of applying the ultimate penalty. As recently as 2010, the North Carolina Republican Party put Mr. McCollum’s booking photograph on campaign fliers that accused a Democratic candidate of being soft on crime, according to The News & Observer of Raleigh, N.C.

In 1994, when the United States Supreme Court turned down a request to review the case, Justice Antonin Scalia described Mr. McCollum’s crime as so heinous that it would be hard to argue against lethal injection.

This crime was particularly heinous. If there was anyone you’d want executed, it would be two mean who raped and murdered an 11-year-old girl. But does the horror of the crime justify potentially executing the wrong men? Is that horror not compounded by the man who committed this horrible crime getting away with it for thirty years? We were lucky he was arrested before he could do it again. In the Michael Morton case, where an innocent man was sent to prison for life because of prosecutorial misconduct, we were not so lucky. The real killer likely murdered another woman two years later. Would we know that if Morton had been unjustly executed instead of being sent to prison for 25 years?

Ultimately, I keep circling back to the victim in this case, a girl who was the same age as me when she was so brutally killed. If she had not been slain by Roscoe Artis, she would now be 42, possibly with a family of her own. When a child is murdered, an entire universe of possibility is destroyed. For all the mocking Scalia is getting on the liberal blogs, he was right: it is hard to argue against lethal injection for someone who would do such a thing. Frankly, it’s hard to argue against beating them to death right there in the courtroom. But an execution wouldn’t have brought Sabrina Buie back. And I don’t see there is any value in adding two more tragedies to that one. And for someone depraved and evil enough to do such a thing, I don’t think the threat of the death penalty is what’s holding them back.

Two innocent men have been freed and a guilty man identified. That’s something and we should be happy about it. But we came very close to killing two innocent men for a horrifying crime they didn’t commit. And it’s not the first time. That should give us all pause.

(*Hard numbers on the number of death row inmates exonerated are surprisingly difficult to come by. Anti-death penalty advocates say it’s a couple of hundred. Pro death-penalty advocates say it’s less than that, but admit to at least a few dozen.)

An Unsession

This sounds like a really good idea:

It’s no longer a crime in Minnesota to carry fruit in an illegally sized container. The state’s telegraph regulations are gone. And it’s now legal to drive a car in neutral — if you can figure out how to do it.

Those were among the 1,175 obsolete, unnecessary and incomprehensible laws that Gov. Mark Dayton and the Legislature repealed this year as part of the governor’s “unsession” initiative. His goal was to make state government work better, faster and smarter….

In addition to getting rid of outdated laws, the project made taxes simpler, cut bureaucratic red tape, speeded up business permits and required state agencies to communicate in plain language.

I’ve written before about why removing obscure out-of-date laws is important: such laws give law enforcement the ability to harass and arrest anyone they don’t like for trivial legal violations. They leave citizens in a state of perpetually violating some law somewhere. But Dayton’s changes go beyond that with real cutting of red tape and tax laws.

Notice that he didn’t “gut regulation” or anything else. He simple cut away the cruft that accumulate on any legal system over time.

This sort of thing is needed at every level but especially at the federal level. I would vote for any President who would stop making laws for a few years and overhaul the ones we have. We have a legal system where hundreds of billions, possibly over a trillion dollars, are lost to regulation and tax code every year. We have a regulatory structure that doesn’t make us any safer and caters to powerful interests. Democrats talk big on new energy sources but see nothing wrong with a regulatory system for just running a power line can run into a decade of legal bullshit.

An unsession for America. We need one. Badly.

Stevens Advocating for the Liberal Constitution

John Paul Stevens, the former Supreme Court justice whom Lee once called a dick for his decision in Raich v. Gonzalez, has a book out about how to rewrite the Constitution so that liberal agendas will be easier to advance. I wish I were joking about that.

There’s been a lot of noise about rewriting the Constitution from the Left lately. You can read screeds about it here and here (that’s from Brooks, but he’s practically a lefty these days). The basic complaint is that our system has created gridlock and stops the President from doing things that need to be done so we should drastically overhaul it. Needless to say, these essays vanish very quickly once Republicans are in power and stopping the President from doing whatever the fuck he wants is suddenly a good thing again.

You can read a really good response to this nonsense here, but months ago, I marked down this tweet as the absolute perfect response:

Stevens, to his credit, was one of the few justices — left or right — who cared about civil liberties. But like many lefties, he thinks the only problem with our Constitution is that it doesn’t give government enough power. So, in his new book, he proposes six constitutional amendments. I’ll get to the first one in a minute but here are the other five. You can go to Hot Air for the in-depth descriptions.

  • An “Anti-Commandeering Amendment” This would essentially ramp up the supremacy clause and break the power of the states to oppose federal law. If I read this correctly, it would mean that no state could sue against Obamacare. It would mean that pot would be illegal in every state again — no surprise from John Paul “Raich” Stevens. It would also mean — and liberals never do seem to see the flip side of this — that President Santorum could outlaw abortion nationwide with a stroke of his pen. You can probably guess what I think of this idea. Our federalist system does stop the federal government from imposing “good” laws on the entire nation; it also stops them from imposing bad ones.
  • An Anti-Gerrymandering Amendment — I wouldn’t really have a problem with this, as gerry-mandering has created huge problems for both parties. But I’m curious whether it would be applied to districts gerrymandered to create majority-black districts.
  • An amendment to legalize campaign finance law. A question: do people never learn from history? The last time we let our political twitches produce a government-empowering amendment, we got Prohibition.
  • A Sovereign Immunity Amendment. This would enable the prosecution of states and state officers that violate Congressional laws and amendments. If I read this correctly, it means that every state official in Colorado and Washington could be arrested for violating Federal anti-drug laws.
  • Amending the 8th Amendment to outlaw the death penalty.
  • Really, this is unworthy of a Supreme Court justice. There’s no subtlety; no concession to any conservative interests. It’s just another liberal wish list. I don’t find it any more insightful that the ramblings of some bonged-up college freshman.

    But the real beauty is in his proposals is the one I left out. In an appalling op-ed, Stevens argues that we should change the second amendment:

    For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.”

    None of this is correct. The history of the Second Amendment doesn’t start with Miller, it starts with founders who stated openly and repeatedly that the Amendment was meant to protect an individual right. And yes, that applies to modern weapons just like the First Amendment applies to the internet (or should; you never know how SCOTUS will move).

    As a result of the rulings in Heller and McDonald, the Second Amendment, which was adopted to protect the states from federal interference with their power to ensure that their militias were “well regulated,” has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arm.

    Just like they have the ultimate power to decide what constitutes cruel and unusual punishment; the power to decide when something restricts free speech; the power to decide when someone’s fourth amendment rights have been violated; the power to decide when someone is being discriminated against. In short, just like the kind of powers Stevens liked to use when it came to civil liberties he supported.

    That anomalous result can be avoided by adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen. As so amended, it would read:

    “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”

    No word on if Stevens wants the First Amendment abridged to read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof as long as it is Christianity; or abridging the freedom of speech, or of the press of the government; or the right of the people peaceably to assemble with permission, and to petition the Government for a redress of grievances as long as they ask nicely.”

    A Second Amendment written like that is no second amendment at all. It would completely abrogate any right to bear arms and allow the President to simply outlaw all firearms completely. Our right to bear arms would be completely dependent on the whims of our government.

    And, frankly, Stevens can drop that horseshit about how the purpose of the amendment is to “protect the states from federal interference with their power”. His other two proposed amendments would completely destroy that protection. If you’re going to change the Second Amendment like that, just repeal it. Don’t put on a fig leaf about state militias when you’ve completely gutted federalism.

    See, this is why amending the Constitution is hard and is supposed to be hard. This is why people like me get so uppity about it. Since the day it was written, powerful men have fought like hell to try to remove its restrictions on government power and erode our civil liberties. Stevens knows this. He was very big on recognizing when our civil liberties were being eroded in attacks on the fourth, fifth, sixth, seventh and eight amendments. But when it comes to amendments and civil liberties he doesn’t like … well, we just need to amend the Constitution, don’t we?

    But … I’ll give him some credit here. At least he’s advocating the we change the Constitution. Most Democrats are advocating that we completely ignore it and that Barack Obama do whatever the hell he wants. So while I may think Stevens’ ideas are bad, at least he has the integrity to advocate the right way to go about them.

    Unleash the AG’s

    So this happened last week:

    Attorney General Eric Holder said Monday that state attorneys general are not required to defend state laws they believe to be discriminatory. Specifically, he said those who think state bans on gay marriage are unconstitutional are not obligated to defend them. Comparing today’s gay rights fight to the civil rights movement in the 1950s and 60s, Holder said he would have challenged discriminatory laws on the books during the time of racial segregation. “If I were attorney general in Kansas in 1953, I would not have defended a Kansas statute that put in place separate-but-equal facilities,” Holder said.

    He encouraged state attorneys general to intensely scrutinize state laws like those that address equal protection, but not to oppose them based upon political or policy leanings. Holder’s comments are not customary for a federal attorney general, as they do not frequently instruct their state counterparts on how to do their jobs.

    Holder is taking a lot of fire for this this and it’s understandable. An AG’s job, after all, is to represent the state and to defend its laws in the courts. But … after thinking about it for a while, I actually agree with Holder for probably the first time in his entire tenure.

    The second part of Holder’s statement is probably the more important: an attorney general should not refuse to defend a state law simply because he disagrees with it. All lawyers are required to argue cases where they don’t like the side they are arguing. Do you think criminal defense attorneys like defending rapists or murderers? They do it because everyone deserves a defense. They do it because it’s their job. An attorney general should defend his states laws even when he doesn’t like them because that’s his job: to represent the state.

    However …

    There is one exception, and that is when the attorney believes that the law involved is unconstitutional. In that case, I would posit that not only should an AG not defend a law he believes is unconstitutional. In some cases, he should argue against it.

    I know that sounds like a recipe for chaos and I think this power should rarely be invoked. DOMA, for example, was of questionable constitutionality and I think, in that case, the Obama Administration should have stood by it. But when an Administration believes that a law is a blatant violation, should they not defend our liberty in court?

    I’ll admit that this is an outgrowth of my view of how our government is supposed to work. Far too often, the judgement of whether a law is constitutional is left the Courts. But it is the sworn obligation of all branches to defend our liberty. The Courts should bounce bad laws, yes. But they don’t always, as the Kelo abomination demonstrated. In those cases, we need the other branches to defend our liberty. We need them to stick up for us when the Courts won’t.

    Congress and State Legislatures should not pass laws that they believe are unconstitutional. The President and the Governors should veto unconstitutional laws and refuse to use powers they believe are unconstitutional, even if the courts approve them (warrantless wiretapping, for example). And even if the AG does enforce bad laws, for the sake of order, I have no problem with him arguing that the law is unconstitutional (there will never be a dearth of attorneys willing to argue in favor of the government).

    I hate to play the game of If I Were President, but I think it’s relevant here. Just last week, I wrote about the vile unconscionable thing that is asset forfeiture. Should not a President order his Justice Department to end asset forfeiture? It is a choice, not a requirement, after all. And should he not have an AG go into Court and argue that this violates the people’s rights? Why must the engine of government justice always be turned against the citizen and against his liberty?

    It’s a little shakier when you get down to the state level, where you could argue that the state AG’s should defend a law even as the federal lawyers argue against it. Or you could argue they could resign on principle. There is a danger of opening a can of worms and politicizing the court process even further. I see that.

    But I don’t think this issue is as clear-cut as a lot of people want to make it. I’m not sure gay marriage laws pass the threshold, but I don’t think it’s ridiculous to argue that a state can realize it is in the wrong and refuse to defend an unconstitutional law.

    Ending the Mandatory Madness

    This is a positive step:

    Today, by a vote of 13 to 5, the Senate Judiciary Committee approved what the Drug Policy Alliance (DPA) calls “the biggest overhaul in federal drug sentencing in decades.” The Smarter Sentencing Act, introduced by Sens. Richard Durbin (D-Ill.) and Mike Lee (R-Utah) last July, would cut mandatory minimum sentences in half for some drug offenses, make the reduced crack penalties enacted in 2010 retroactive, and expand the category of defendants eligible for sentencing below the mandatory minimums. “The Smarter Sentencing Act is the most significant piece of criminal justice reform to make it to the Senate floor in several years,” says Laura W. Murphy, director of the American Civil Liberties Union’s Washington Legislative Office.

    The Durbin-Lee bill does not go as far as the Justice Safety Valve Act, introduced last March by Sens. Rand Paul (R-Ky.) and Pat Leahy (who chairs the Senate Judiciary Committee). That bill would have made mandatory minimums effectively optional by alllowing judges to depart from them in the interest of justice. The Smarter Sentencing Act is neverthless a big improvement. The crack provision alone could free thousands of prisoners serving sentences that almost everyone now concedes are excessively long. It would dramatically reduce the penalties for certain nonviolent drug offenses, changing 20-year, 10-year, and five-year mandatory minimums to 10 years, five years, and two years, respectively. It would allow more nonviolent offenders to escape mandatory minimums entirely by loosening the criteria for the “safety valve,” allowing two criminal background points instead of just one.

    The massive sentences given to non-violent drug offenders are a big reason we now have two million people in prison. I have no problem with courts handing down big sentences to violent criminals; indeed there are some I think get off far too lightly. But when it comes to cases of possession and small-scale dealing, I see no purpose in forcing judges to lock up non-violent criminals for ridiculous amounts of time so they can learn to be real criminals.

    I’m dubious that the House will act on this. But I wanted to post this to note who is behind it. The big sponsors are Rand Paul, whom the Left assures us in an evil racist Tea Party Republican, and Mike Lee, whom we are also assured is an evil racist Tea Party Republican. In fact, Mike Lee is such an evil racist Tea Party Republican that he delivered the evil racist Tea Party response to the State of the Union which, um, railed against corporate welfare, income inequality, NSA spying and the Republican establishment.

    And yet these two evil racist Tea Party Republicans are advancing an issue that is (or used to be) of great importance to many so-called liberals. Thousands of people’s lives will be improved by this and most of them are of a different color than Mike Lee or Rand Paul. Most of the communities that would benefit are of a different social class.

    Guess maybe we should pay more attention to some of those evil racist Tea Partiers, huh? Seems like they might have an idea or two.

    The Other Prohibition

    All of us are familiar with Prohibition, the attempt to ban the sale and manufacture of alcohol in this country. Very few would disagree that it was an unmitigated disaster. It created a spike in crime, empowered criminals and smugglers and did little to stop drinking (and I hope you celebrated Repeal Day last week).

    This post is not about alcohol prohibition, but I raise it to point out some of the traits it shares with two other kinds of prohibition. It was pushed by religious figures, yes, but more so by a Progressive Movement that saw banning alcohol as being for Americans’ own good. They believed that they could create something like a perfect society, where everyone behaved … at least according to how they thought everyone should behave. They unabashedly claimed the moral high ground, casting their opponents as either drunks or profiteers on human misery. And the effect varied depending on class. The Volstead Act was an inconvenience, at worst, to the rich and powerful, who could acquire illicit booze when they wanted it. Meanwhile, entire swathes of the population were condemned to violence, extortion and murder. But it was OK because they were just bootleggers, drunks, smugglers and Italians. Al Capone pointed out, quite correctly, the classist nature of Prohibition — that what was called bootlegging when he did was called hospitality when rich people did.

    There’s a second prohibition that we’ve discussed many times — the War on Drugs. I won’t rehash the many many horrors and inefficacies of this war — see the Alberto Willmore video below. But notice the traits it shares with alcohol Prohibition. It was supported by the Religious Right, yes, but also upheld by many “Progressives”. Our Vice President has long been one of the most vocal drug warriors out there and several Presidential campaigns in the 80’s and 90’s turned on who could be toughest on drugs. The Drug Warriors believe they can create a perfect drug-free society. They unabashedly claim the moral high ground, describing their opponents as either addicts or profiteers on human misery. And again, notice how the effect is varies depending on class. It’s not difficult for the elites to get drugs if they want them. If a Congressman’s son is busted with drugs, he goes into treatment. Meanwhile, the lower classes are condemned to the hell of gang wars, no-knock police raids and minimum sentencing guidelines. But it’s OK because they’re just drug dealers or drug addicts (or, it must be said, black).

    There’s a third prohibition, however. In fact, it’s actually the first prohibition, the one whose “success” inspired the ones that followed. It is so insidious that many of us don’t even realize it is a prohibition. And since my friend Maggie McNeill has asked those of us who oppose this prohibition to write about it on Friday the 13th, I’m going to talk about the prohibition on sex work. Or, to be trite: the War on Whores.

    Prostitution was not illegal for most of our history or most of human history. Because even those who regarded it as an evil saw it as a necessary one. As Maggie explains in the Cato Unbound debate between her, Ronald Weitzer and two well-meaning (or not so well-meaning) fools:

    Indeed, up until the nineteenth century almost nobody imagined that prohibition could be done, let alone that it should. It was almost universally understood that many working-class women and a not-inconsiderable number of those in higher classes would accept money for sex, at least on occasion, and it was impossible to draw a bright, clear line between behaviors that constituted “prostitution” and those (such as concubinage, mistresshood, and political marriage) which did not despite their often-mercenary basis. The manifold laws regulating sex work were not intended to preclude pragmatic motivations for sexual behavior, but rather to keep up appearances, guard the purity of bloodlines, and maintain public order. But as the Victorian Era dawned, a new idea began to take hold of European minds: if science could perfect Man’s tools and techniques, why couldn’t the same process be applied to Mankind itself? The immediate result of turning (pseudo-)scientific inquiry upon sex was that taking money for it was no longer considered merely something that “unladylike” or “sinful” women did for a living or extra income; instead, the “prostitute” was defined into existence as a specific type of woman, separate and distinct from other women. For most of the century the prevailing view was that women who took money for sex were congenitally defective, but in the 1880s the idea arose that most or even all were forced into the profession by evil men. It was about this time that “avails” laws started to appear, under the rationale of “protecting” women from exploitation by such men.

    By the beginning of the twentieth century, the “white slavery” hysteria was in full swing. Progressives were determined to “rescue” women from the clutches of the “pimps” who were abducting them by the thousands from homes, railway stations, and dance halls, and for the first time in history the act of taking money for sex was itself criminalized on a large scale. In the United States, it was illegal almost nowhere in 1909, but almost everywhere by the end of 1914.

    The more you dig into the issue the more you see the parallels to the War on Drugs and alcohol Prohibition. Again, we see the hand of religion, but also the Progressives (and I would argue that they are worse on this issue than the religious, having now donned the cloak of pseudo-feminism). They believe they can create a perfect whore-free society. They unabashedly claim the moral high ground, describing their opponents as whores or pimps. And the effect once again depends on class. It’s not difficult for someone like Eliot Spitzer — who prosecuted sex workers and their clients — to get a high-priced call girl. But some poor shmoe who just wants to get laid goes on John TV. Prostitutes can be raped with impunity, extorted by law enforcement and ultimately jailed. But it’s OK, because they’re just perverts and whores.

    And look where this hysteria has led us. Just as the War on Drugs will get a high school girl busted for giving Midol to a friend, so will the sex prohibitionists engage in absurd excesses in the War on Whores. In Madison, a man has started a business where people can pay to snuggle and cuddle with other people. I think it sounds stupid (about a decade ago, this sort of thing showed up on a Penn and Teller episode as a laugh). However, if paying $60 to hug some people is your thing, knock yourself out.

    But ultra-liberal Madison is banning it.

    Snugglers contend touching helps relieve stress. But Madison officials suspect the business is a front for prostitution and, if it’s not, fear snuggling could lead to sexual assault. Not buying the message that the business is all warm and fuzzy, police have talked openly about conducting a sting operation at the business, and city attorneys are drafting a new ordinance to regulate snuggling.

    “There’s no way that (sexual assault) will not happen,” assistant city attorney Jennifer Zilavy said. “No offense to men, but I don’t know any man who wants to just snuggle.”

    This is your brain on the War on Whores: a government official invoking sexual assault and the dreaded prostitution in a response to a hug house. God knows what they would have done if they’d found out about the back rubs on my freshman year college dorm.

    This is where this ahistorical hysteria on sex work has led us. This is who we are now. People think that bans on prostitution and hysteria over sex work only affects dirty whores and their filthy clients. But when you open the door to government getting involved in consensual sex between adults, the entire damned law enforcement industry will stampede through it. And next thing you know, they’re calling you a rapist for wanting to hug someone.

    No society has ever rid itself of alcohol — not even Islamic countries, where alcohol is illegal. No country has ever rid itself of drugs — not even China which once imposed the death penalty for opium use. They can reduce it, a bit. They can drive it underground. But they can not stop human beings from human beings.

    And no society has ever rid itself of sex work. In fact, many of the greatest empires embraced it. Our experiment in banning sex work has now gone on for a century. As with alcohol and rugs, its adherents continually claim we are right on the verge of victory; we only need to ruin a few more lives. It’s time that the prostitution ban, like Prohibition and the War on Drugs, find its way into the list of history’s abandoned mistakes.

    Don’t think that this is entirely about booze, drugs and hookers, either. All three of our nation’s great prohibitions have arisen from the Great Progressive Conceit: the idea that government can make people better (assuming you accept the Progressives’ definition of ‘better’). This is a conceit that plays out in a thousand ways in our politics, from the government telling you your insurance policy isn’t good enough to forbidding you from smoking in your own home to telling you not to drink so much soda.

    The Great Progressive Conceit is tempting because government can create the circumstances for people to become better. Freedom of religion and speech, capitalism, rule of law, etc. all create opportunities for human beings to improve themselves and the society around them. And we absolutely need government to stop people from harming each other. But the minute the government turns its eye toward telling you that you must do this or you must not do that for your own good …

    Just Say No.